Update: 1:00pm. We reached by telephone Kathy Moehring, the Executive Director of the West AlamedaBusiness Association. Ms Moehring signed as the “citizen” for this citizen’s ballot initiative. She had not yet seen this letter, and declined comment until she had a chance to read it. We provided her a copy of it.

The City of Alameda received a letter from an Oakland attorney this week who asserts that the SunCal ballot initiative is fundamentally and fatally flawed because of discrepancies in the text. Here is a copy of the letter.

It has been reported that you have advised the Alameda City Council, correctly, that if the Registrar of Voters certifies that the required number of registered voters of the City of Alameda have signed the initiative petitions for the Alameda Point Revitalization Initiative, then the only circumstances under which the Alameda City Council could refuse to place the initiative on the ballot would be either because the initiative petitions failed to include the entire initiative Chase v. Brooks, 187 Cal. App. 3d 657, or because the petition or the initiative is misleading. Widders v. Furchtenicht, 167 Cal. App. 4th 769, and Marblehead v. City ofSan Clemente, 226 Cal. App. 3d 1504. The Alameda Point Revitalization Initiative contains mutually contradicting provisions that cannot be reconciled, which make the initiative misleading. San Francisco Forty-Niners v. Nishioka, 75 Cal. App. 4th 637.

Attached hereto as Exhibit A are four pages from the Alameda Point Revitalization Initiative stating that there will be 3,182,000 square feet of commercial and business park development. Attached hereto as Exhibit B is Table 11-2 stating that there will be 2,515,000 square feet of commercial and business park development. The difference is 667,000 square feet. That is 20% of the higher number and 25% of the lower number. That is larger than the entire Alameda Towne Centre, the largest retail shopping center on Alameda Island at 657,000 square feet, and that is just the difference. This is too significant and material a mistake and discrepancy to be ignored.

667,000 square feet of business development will be significant and material to the decisions of many voters. A core argument of proponents of the initiative is that this project will be environmentally friendly and not have a significant impact on traffic, because of a balance between jobs and housing. The significant error in the initiative itself regarding the square footage of job creating commercial space creates a situation were this argument is factually misleading, since the ratio of commercial space to housing units cannot be determined, because the number of square feet cannot be determined to the extent of 667,000 square feet.

Many voters may view the lower 2,515,000 square feet as enough or even too much business development and the very most that they would approve. Other voters may want the larger development. Some voters may look at the costs both of development and of the demand on city services that will be created, and feel that the city will require the business license taxes and sales taxes that the extra 667,000 square feet will generate just to keep the city budget from going negative.

Whichever number turns out to be the correct one, one of those two groups of voters will be the victims of misrepresentation in the initiative itself. Therefore, the initiative is misleading. In San Francisco Forty-Niners v. Nishioka, 75 Cal. App. 4th 637, just like in the Alameda Point Revitalization Initiative, the misleading information was right there in the initiative itself. In this case, it is in either the four statements that there will be 3,812,000 square feet of commercial space or the statement that there will be only 2,515,000 square feet of commercial space. Either way, one of those statement must be false and misleading.

[detailed excerpts from case and statute law omitted for brevity]

The first solution to this problem is for you to inform the City Clerk of the problem and ask her to refuse to accept the signature petitions or not to forward them to the Registrar of Voters for inspection, counting and certification on the grounds that the initiative itself is fatally inconsistent, defective and unenforceable.

The second solution would be for you to so advise the City Council and recommend to the City Council that it not certify the initiative for the ballot on the same grounds.

If the City of Alameda does not avail itself of either of these solutions, the third solution will be for Alameda voters to sue their city for a preliminary and permanent injunction to prevent the initiative from being placed on the ballot for the same reasons. Based upon the evidence attached and the cases cited, the outcome of that lawsuit is obvious. The plaintiffs would be entitled to recover their attorneys fees from the City pursuant to CCP §1021.5. Please let me know how the City of Alameda decides to proceed regarding this problem with the Alameda Point Revitalization Initiative, by the close of business on Tuesday, June 9, 2009, since the initiative petitions are going to be submitted to the City Clerk very soon.

Dana Sack.

The full text of the letter including enclosures is available online here.